Page 210 - 2021 White Paper
P. 210
1 White Paper on the Business Environment in China
of civil subjects from the perspective of civil law, image. However, the Civil Code, Article 1018 (2)
and has full regulations on protection of specific provides that “a portrait is an external image
personality rights and interests such as rights reflective of a certain natural person by means of
to life, rights to body, rights to health, rights to video, sculpture, painting, etc., wherefrom such
name, portrait rights, rights to reputation, rights person can be identified.” Thus, the definition of
to honor, and protection of privacy rights and portrait rights in the Civil Code has changed from
personal information. “ f a c e - c e n t r i c ” t o “re c o g n i z a b l e”. Fo r e x a m p l e,
any unique body movements, or any view of the
a. Name back, etc. of a person that are known to the public
and can show the image of such person, shall be
According to the previous General Principles of protected by law. This provision therefore expands
the Civil Law, the names of a legal person could the scope of protection of portrait rights.
only be used and transferred. However, the Civil
Code amended this provision, stating that the In the previous General Principles of Civil Law,
name of a legal person may be determined, used, Article 100, “citizens shall enjoy portrait rights.
changed, transferred or permitted for use by The portraits of citizens shall not be used for
others pursuant to law. t h e p u r p o s e o f p r o f i t w i t h o u t t h e i r c o n s e n t .”
However, the Civil Code, Article 1019 provides that:
The General Provisions of Civil Law provided “all organizations or individuals shall not infringe
for the rights to the name of legal persons and on other people’s portrait rights by defaming,
non-legal person organizations, but there were defacing, or forgery through information
no provisions on protection of abbreviation technology, or any other means. Without the
of the name of legal persons and non-legal consent of the portrait rights holders, none of their
person organizations. The Civil Code, Article 1017 portraits shall be made, used, or published, unless
reads, “pseudonyms, artist names, net names, otherwise provided for by law. Without the consent
translated names, identifiers, and abbreviations of portrait rights holders, any rights holders of
of names, that have certain social popularity, and any portrait works shall not use or publish the
are sufficient to cause public confusion if they portrait of the portrait rights holder by publication,
are used by others, shall refer to and apply the reproduction, issuance, leasing, exhibition, or any
provisions on the protection of rights to one’s other means.” Infringement of portrait rights will
name.” no longer be limited to the purpose of obtaining
profit, but shall include other ways of infringement
This provision includes abbreviations subject of portrait rights, which strengthens protection of
to the scope of protection of the rights to a name. portrait rights.
For example, “Ali” “Maotai” and the like are the
abbreviations of the relevant subjects. They are At the same time, the Civil Code specifies the
known to the general public that are related to proper scope of use of portrait rights40, explaining
their enterprises, and thus should be protected clauses41 and terms42 for use of portrait in license
by law. This provision is of great significance for contracts.
protection of the interests of legal persons and
non-legal person organizations, especially for The Civil Code, Article 1023 stipulates that
restraining unfair competition. protection of the voice of a natural person shall be
referred to the relevant provisions on protection
b. Portrait Rights of the right to use portraits.
The traditional meaning of a portrait is limited c. Relief of Personality Rights
to external images, mostly facial features, namely
a portrait should reproduce the facial features of The victim may have the right to request the
a natural person, while other physical features of infringer to cease infringement, remove obstruction,
a natural person should not be considered as a 40 Civil Code, Article 1020
portrait, even if they reflect an individual’s external 41 Civil Code, Article 1021
42 Civil Code, Article 1022
210
of civil subjects from the perspective of civil law, image. However, the Civil Code, Article 1018 (2)
and has full regulations on protection of specific provides that “a portrait is an external image
personality rights and interests such as rights reflective of a certain natural person by means of
to life, rights to body, rights to health, rights to video, sculpture, painting, etc., wherefrom such
name, portrait rights, rights to reputation, rights person can be identified.” Thus, the definition of
to honor, and protection of privacy rights and portrait rights in the Civil Code has changed from
personal information. “ f a c e - c e n t r i c ” t o “re c o g n i z a b l e”. Fo r e x a m p l e,
any unique body movements, or any view of the
a. Name back, etc. of a person that are known to the public
and can show the image of such person, shall be
According to the previous General Principles of protected by law. This provision therefore expands
the Civil Law, the names of a legal person could the scope of protection of portrait rights.
only be used and transferred. However, the Civil
Code amended this provision, stating that the In the previous General Principles of Civil Law,
name of a legal person may be determined, used, Article 100, “citizens shall enjoy portrait rights.
changed, transferred or permitted for use by The portraits of citizens shall not be used for
others pursuant to law. t h e p u r p o s e o f p r o f i t w i t h o u t t h e i r c o n s e n t .”
However, the Civil Code, Article 1019 provides that:
The General Provisions of Civil Law provided “all organizations or individuals shall not infringe
for the rights to the name of legal persons and on other people’s portrait rights by defaming,
non-legal person organizations, but there were defacing, or forgery through information
no provisions on protection of abbreviation technology, or any other means. Without the
of the name of legal persons and non-legal consent of the portrait rights holders, none of their
person organizations. The Civil Code, Article 1017 portraits shall be made, used, or published, unless
reads, “pseudonyms, artist names, net names, otherwise provided for by law. Without the consent
translated names, identifiers, and abbreviations of portrait rights holders, any rights holders of
of names, that have certain social popularity, and any portrait works shall not use or publish the
are sufficient to cause public confusion if they portrait of the portrait rights holder by publication,
are used by others, shall refer to and apply the reproduction, issuance, leasing, exhibition, or any
provisions on the protection of rights to one’s other means.” Infringement of portrait rights will
name.” no longer be limited to the purpose of obtaining
profit, but shall include other ways of infringement
This provision includes abbreviations subject of portrait rights, which strengthens protection of
to the scope of protection of the rights to a name. portrait rights.
For example, “Ali” “Maotai” and the like are the
abbreviations of the relevant subjects. They are At the same time, the Civil Code specifies the
known to the general public that are related to proper scope of use of portrait rights40, explaining
their enterprises, and thus should be protected clauses41 and terms42 for use of portrait in license
by law. This provision is of great significance for contracts.
protection of the interests of legal persons and
non-legal person organizations, especially for The Civil Code, Article 1023 stipulates that
restraining unfair competition. protection of the voice of a natural person shall be
referred to the relevant provisions on protection
b. Portrait Rights of the right to use portraits.
The traditional meaning of a portrait is limited c. Relief of Personality Rights
to external images, mostly facial features, namely
a portrait should reproduce the facial features of The victim may have the right to request the
a natural person, while other physical features of infringer to cease infringement, remove obstruction,
a natural person should not be considered as a 40 Civil Code, Article 1020
portrait, even if they reflect an individual’s external 41 Civil Code, Article 1021
42 Civil Code, Article 1022
210
